JOVITHA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA MATRIMONIAL APPEAL NO. 2668 OF 2024 (Arising from the Judgment of the Resident Magistrates' Court ofBukoba in Matrimonial Cause No. 1 of2022) JOVITHA GRATION................................................ APPELLANT VERSUS GRATION JEREMIA................................................. RESPONDENT JUDGMENT 04th & 7th November 2024 KIWONDE, J. Before the Resident Magistrates' Court of Bukoba, the appellant, one Jovitha Gration, in Matrimonial Cause No. 1 of 2022 petitioned for decree of divorce, order of distribution of matrimonial assets, custody and maintenance of the issues of marriage, her maintenance and any other reliefs as the trial court deemed just and fit to grant. Upon conclusion of the trial, the trial court granted and issued decree of divorce, ordered equal division of matrimonial properties, custody of the children was placed under the appellant, while, the respondent was ordered to pay school fees and provide maintenance to the children and the respondent was allowed to have full access to them. i The appellant was aggrieved by the said decision. She has preferred the present appeal based on three (3) grounds of appeal as follows: 1) That apart from the abundantly adduced testimonies by the prosecution side id est PW1 & PW2 over the listed joint properties, the learned trial Magistrate misdirected himself by ruling out that other properties were still forming part of the deceased's estate, hence, not subject to the distribution. 2) That the trial court erroneously exercised its powers of ordering division of jointly acquired assets by failure of taking into account the needs of the issues of the marriage. 3) That the lower court further erred in law and fact by failure of ordering the pleaded maintenance order to the appellant. The appellant prayed this court to allow the appeal, order division of all mentioned properties as listed in the petition for divorce and testified during trial, order division of matrimonial properties in regard to the interests and needs of the issues of marriage, cost and any other order or reliefs the court may deem just to grant. At the hearing of this appeal, the appellant was represented by Mr. Lameck John Erasto, learned counsel, while the respondent had the legal services of Mr. Ponsian Mjuni learned counsel. 2 In supporting the first ground of appeal, Mr. Lameck faulted the trial court for holding that some of the respondent's assets were part of the estate of his late father and therefore they were not subject to division while there was enough evidence to prove that they were matrimonial assets. The counsel submitted that out of five matrimonial assets which were pleaded, the trial court only ordered the division of two assets. He argued that the appellant gave out her evidence on how the said properties were acquired, which evidence was supported by her mother-in-law (PW2) and their near relative. He said she was credible witness. In support of this argument, he cited the case of Mustapha Ramadhani Kihiyo V. R [2006] T. L. R 323, where it was held that evidence of the relative/ related witness is admissible if it is credible. Besides that, the counsel said the appellant stated on how they acquired the said properties. She said some were bought while the others were acquired through inheritance from their father-in-law and the respondent's grandmother. The couples used to develop them until when the marriage broke down in 2023. Regarding exhibit D4, which was tendered before the court, the learned counsel stated that the evidence shows that after the death of the respondent's father, the meeting was convened and the distribution of the 3 properties among the beneficiaries was done; therefore, it was wrong for the trial court to state that parties had never gone to the probate court. He submitted that since the clan members distributed the deceased estate, then the said distribution is valid and that the distribution of the deceased estate had already been completed though customary practice. He cited the case of Julius Fundi and another Versus Ernest Pancras, Probate and Administration Cause No. 3 of 2013, High Court Bukoba. In the second ground of appeal, Mr. Lameck argued that the trial court erred in law by dividing the matrimonial assets without considering the interests of the children. He submitted that since there is no dispute that the parties had six children, then they were required to be considered because they are young and they are stilling schooling. He referred to section 114 (2) (d) of the Law of Marriage Act, Cap 29 and the case of Anna Kanunga V. Andrea Kanunga [1996] T. L. R 195 With regard to the third ground of appeal, Mr. Lameck submitted that the trial court erred in law for failure to order maintenance to the appellant leaving her helpless. He said this was pleaded but the court did not order for such maintenance. He was of the view that this is contrary to section 4 115(l)(e) and section 63 (a) of the Law of Marriage Act, Cap 29 and prayed this appeal to be allowed. In reply to the first ground of appeal, Mr. Pontian Mujuni said the trial court was right to decide that the alleged properties were the properties of the respondent's father as it is shown in Exhibit D4 and it is not true that they were developed by the parties and if any of parties did it, he/she did it on his own peril. This counsel argued that there is no any other evidence which showed that there was distribution of the estate, rather than that of PW2 alone which evidence is contradictory because at one time she said the property was distributed, on the other side, she said the property was given to them. The learned counsel submitted that with such evidence PW2 contradicted herself on how she was involved in the distribution of the deceased estate. He argued that since the appellant was a married woman and if there was any inheritance, then she could bring a witness from among clan members to prove the same. He submitted that in exhibit D4, four clan members were accused persons and they were directed to go for probate proceedings. He therefore said this ground of appeal lacks merit. 5 As to the second ground of appeal, the learned counsel submitted that the respondent is taking care of the children and therefore the said children are benefiting from their father and that is why the court divided matrimonial assets equally between the parties. Finally, the third ground of appeal, the learned counsel replied that since the appellant was given 50% share in the matrimonial properties, then she will be able to maintain herself. He further submitted that it is not mandatory for the court to order maintenance of the appellant because the word used in that section is "may", that means not mandatory and it implies the discretion of the court. In his view, this ground lacks merit and therefore this appeal should be dismissed with costs. In rejoinder submissions, Mr. Lameck submitted that exhibit D4, was criminal case, and that is why the Magistrate just advised the parties by the way. He submitted that the clan members distributed the estate of the late Theogenes Jeremiah and therefore the appellant's mother in-law was credible witness. The learned counsel further reiterated that in law, the children have to be considered in division of the matrimonial assets because they are all dependants and are still schooling. 6 Concerning maintenance of the appellant, the learned counsel rejoined that the appellant could not maintain herself from her share in the division of the assets. He therefore prayed this appeal to be allowed. From the records and the submissions from both parties, the issue for determination is whether this appeal is meritorious. In the present appeal, basically, the grievance by the appellant centres on two aspects; the division of the matrimonial assets and maintenance of the appellant by the respondent. The complaint on distribution of matrimonial properties, the appellant argued that the trial court wrongly held that some of the listed properties in the petition for divorce are part of the deceased estate. The appellant mentioned the properties acquired during the existence of their marriage to include unsurveyed plot located at Ikande village, Nshamba Ward within Muleba District which is developed by building residential house and they have planted banana trees, unsurveyed plot located at Itongo village, Nshamba Ward within Muleba District which is also developed by building commercial house, unsurveyed plot located at Ikande Village, Nshamba Ward, within Muleba District which is developed by planting banana and coffee trees, unsurveyed land which is located at Ikande village. Nshamba ward within Muleba District which is developed by 7 planting coffee trees and unsurveyed land located at Kibanga village, Kabanga ward, within Muleba District which is used for planting seasonal crops which properties she claimed to be acquired by joint effort. As to how they acquired the assets, the appellant said they inherited a farm at Ikande and Bumiro from the respondent's father and a farm at Kabutagi/Kibanga was inherited from the respondent's grandmother. She further said that they managed to purchase a farm from Vedastina Chuka which is located at Ikanda/Itongo village. The evidence which was supported by PW2. According to her these are matrimonial assets acquired jointly and therefore are subject to distribution. To the contrary, the respondent resisted division of the plot located Ikande village, Bumiro and Kabanga on reason that they are not matrimonial assets. He argued that they are among the estate of his late father and grandmother. According to him the properties which were acquired jointly are the plot at Ikanda/Itongo village and a plot at Kyamashonga/Itongo village. The trial court was reluctant to order division of properties in paragraph 5(a)(d) and (e) in the petition for divorce. These are the residential house with a farm planted banana trees, unsurveyed plot located at Bumiiro, 8 developed and planted coffee trees and a farm located at Kibange village, developed by planting seasonal crops respectively. The trial court refused distribution of the properties in (a) (d) and (e) above on reason that they are part of the deceased estate, the respondent's father, and that the administrator of the said estate has not yet been appointed to distribute them to the lawful heirs. But at the trial, PW1, the present appellant testified at page 18 of the proceedings that these properties were distributed by the family members and the appellant and the respondent were given such plots. This evidence was corroborated by that of PW2, the respondent's mother, one Aurelia Jeremiah that the parties to this appeal were given a farm located at Ikande/Itongo and that of Bumiiro as their share in the estate of the deceased respondent's father, while, the farm at Kibanga (5 (e)) they inherited from the grandmother, Ernestina Samwel. Now, the sub-issue here is whether this distribution of the deceased estate by family members was legally recognized or not to require probate proceedings to appoint administrator of the deceased estate. In my view, the family members decided to distribute such deceased estate without involving court process. So, it was lawful according to customary rites. It 9 was not shown if PW1 and PW2 were not credible. Thus, their evidence is entitled to be believed. It should be borne in mind that these spouses developed the assets. In law, under section 114 (3) of the Law of Marriage Act, Cap 29 (R. E 2019), matrimonial assets include substantial improvements made by the other party even if the property was acquired before or during the subsistence of the marriage or by one of the spouses. This was a position in the case of Shakila Lucas Versus Ramadhani Sadiki, Civil Appeal No.349 of 2020 [2024] TZCA 36 (14th February 2024) TanzLII. For that matter, even these properties are subject to division among the parties. The respondent said he sold some four (4) plots to different persons like Johanes Apolinary, Aristidius Athanas, PhilbertTrasias and Yazidi with the consent of the appellant so as he could obtain school fees. If this was the matter, the appellant would not have listed the same properties she knew that they are sold. The first ground of appeal finds merits and it is allowed. Another complaint was on the distribution of matrimonial assets without considering the interests or needs of the issues of marriage. Indeed, the evidence indicates that there are six (6) children under the custody of the appellant. But the respondent was ordered to provide maintenance for io them and pay school fees. Also, the trial court allotted equal share in the division of matrimonial assets, so, I am unable to fault it on this aspect. As a result, the second ground of appeal is without merit. Finally, it is rightly argued by the counsel for the respondent and I am in agreement with him, that it is not mandatory requirement to order the respondent to maintain his former wife subsequent to dissolution of marriage. It is upon the discretion of the court as the case may be. The law has set some conditions like if the respondent refused to provide maintenance or neglected the appellant or deserted her for a long time. In the present appeal, the respondent has been burdened to maintain the six issues of marriage and pay school fees for them; the appellant has been given equal share in the division of the matrimonial assets, so, the appellant has means to maintain on her own. In my view, there was no compelling circumstance to order maintenance for the appellant. The third ground of appeal has no merit. Consequently, the appeal is partly allowed. The appellant is entitled to equal share in the division of the matrimonial assets listed under paragraph 5(a)(b)(c)(d) and (e) of the petition for divorce. This being a matrimonial matter, I make no order as to cost. 11 It is so ordered Dated at Bukoba this 7th November 2024. F.H. KI DE JUDGE 07/11/2024 Court: Judgment is delivered in chamber in the presence of the appellant, the respondent and Grace Mutoka (RMA) this court 7th day of November 2024 and the right of further appeal is explained. . H. k: ONDE JUDGE 07/11/2024 12